Residency

OBTAINING RESIDENCY DERIVED FROM YOUR IMMEDIATE RELATIVE

ADJUSTMENT OF STATUS AND IMMIGRANT VISAS

Adjustment of status and immigrant visa processing are two ways of achieving the goal of permanent residence (“green card”) status. Adjustment of status occurs by a process in the U.S. and immigrant visa processing takes place outside the U.S. Depending on the circumstances of the case, as well as the current processing times will determine which way is best for you. If there are issues of status violation or unlawful presence, then adjustment of status may be the only choice. If there are no such issues, then I determine which procedure is best at the time of making the application. The application for either adjustment or immigrant visa is the last thing done in a case. Sometimes there are one or two procedures that occur before this last application, and these other procedures can takes months or many years to accomplish, and processing times are always changing. Therefore, the decision as to file by adjustment or immigrant visa is left to the time right before the application is made.

BROTHERS AND SISTERS OF US CITIZENS

Brothers and Sisters of U.S. citizens who are at least 21 years old are the 4th preference family priority. 65,000 visas annually are allocated to this category worldwide. Copy and paste the link: http://travel.state.gov/visa_bulletin.html to your address field on your browser for current processing times based on the citizenship of the foreign brother or sister. As you will see from this link, the priority date may be backlogged for 10 or more years. This category has been oversubscribed forever, especially for countries like Mexico, India and the Philippines. If the brother or sister is married to a person of a different citizenship, then that spouse’s citizenship can be used instead to determine the “priority date” rather than the principal alien. If you’re a citizen of the Philippines and your spouse is not, you could save up to 10 years in processing time! It now takes some 20 years to process this way for Philippine citizens compared to the 10 years to immigrate for everyone else. As a result, in general, this way of immigrating should be used as a fallback option rather than the main option for immigrating anytime soon. Depending on the foreign person’s life plans, it may be best to either file this petition early, or forego it all together. Under this category, not only can the spouses of the foreign sibling also immigrate, but minor children can also immigrate, and depending on the age of the child when the petition is filed and how long the case takes, sometimes even grown up children can benefit from this category.

MARRIED ADULT CHILDREN OF US CITIZENS

Married adult children of U.S. citizens are the 3rd preference family priority. 23,400 visas annually are allocated to this category worldwide. Copy and paste the link: http://travel.state.gov/visa_bulletin.html to the address field on your browser for current processing times based on the citizenship of the foreign adult child. As you will see from this link, the priority date may be backlogged for six or more years. This category has been oversubscribed for a long time, especially for Mexican and Philippine citizens. If the adult child is married to a person of a different citizenship, then that spouse’s citizenship can be used instead to determine the “priority date” rather than the principal alien. If you’re a citizen of the Mexico and your spouse is not, you could save up to three years in processing time. If you’re a citizen of the Philippines and your spouse is not, you could save up to eight years in processing time. As a result, this way of immigrating may be used as a fallback option rather than the main option for immigrating anytime soon. Employment based options should also be explored. Depending on the foreign person’s life plans, it may be best to either file this petition early, or forego it all together. Under this category, not only can the spouses of the foreign adult children of U.S. citizens immigrate, but their minor children can also immigrate, and depending on the age of the child when the petition is filed and how long the case takes, sometimes even grown up children of the adult child of a U.S. citizen (i.e., the grandchildren) can benefit from this category.

MINOR CHILDREN OF PERMANENT RESIDENTS

Minor children (under 21) of U.S. permanent residents are the 2A preference family priority. 26,266 visas annually are allocated to this category worldwide. Copy and paste the link: http://travel.state.gov/visa_bulletin.html to the address field on your browser for current processing times based on the citizenship of the permanent resident parent. As you will see from this link, the priority date may be backlogged for six years if you’re from every country other than the Philippines, in which case the current processing time is eight years. This category has been oversubscribed for a long time. If the parent got permanent residence through a job offer, through a U.S. citizen parent when the child was already an adult, or through a U.S. citizen brother or sister, the child of the permanent resident case use the same priority date and immigrate much sooner. In that case, the child is considered “following to join” the permanent resident parent, and the only time frames necessary are those to do the paper work, and not waiting for a priority date to become current. If the resident parent got their status through a U.S. citizen spouse, that spouse can also file for the child so long as the marriage took place before the child’s 18th birthday. If the child is married, he or she no longer qualifies, and it will be necessary for the parent to first become a U.S. citizen in order to petition for the child. Since getting citizenship only happens when a permanent residence is such for five years, except for spouses of U.S. citizens or active duty military personnel (in which case it is three years), other categories should be considered. If the child is school age, it might be possible to qualify as a non-immigrant student, but the child would have to show they have a home abroad to which they intend to return. This can be difficult to prove if the parent is a U.S. permanent resident living in the U.S. If the minor child is working, then it might be possible to do the case through a U.S. employer. This category ends up having many different results depending on the details of the case. Be best solution is early planning, and good legal advice. Our office is always available to respond to questions. Fill out our Free Initial Consultation form for this purpose.

MINOR CHILDREN OF US CITIZENS

Minor children of U.S. citizens are immediate relatives and not subject to the quotas of preference aliens. The time it takes to get permanent residence is only that time it takes to process the petition and either adjustment of status (in the U.S.) or immigrant visa. See below for details of adjustment of status and immigrant visa processing. If the alien has a foreign born parent and a U.S. citizen parent, the petition should be filed by the U.S. citizen parent in order to maintain the immediate relative category. Under these circumstances, the marriage must take place before the child’s 18th birthday. Adjustment of status and immigrant visa processing are two ways of achieving the goal of permanent residence (“green card”) status. Adjustment of status occurs by a process in the U.S. and immigrant visa processing takes place outside the U.S. Depending on the process time of the jurisdiction where the applicant lives, it might be faster to apply for immigrant visa processing rather than adjustment of status, but in order to visa process successfully, it is necessary to determine whether there are any issues of unlawful presence. If a person is in unlawful presence, and is over the age of 17, then they are not admissible to the U.S. unless they first have a waiver of the unlawful presence approved. Because these waivers are discretionary, and only about half of waiver applications are approved, it is much safer to adjust status in the U.S. rather than to risk departure for visa processing. In addition to being safer, it is also cheaper to adjust status because the expense of international travel is avoided. Also, the person’s life is not disrupted by having to leave the U.S. for usually one to two weeks in order to take care of the case. So it might take more time to adjust status, but there are substantial benefits to doing it this way, and certainly most people prefer to adjust status when they’re eligible to.